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Title to Indian reserves in British Columbia : a critical analysis of order in council 1036 Smith, Donald Myles


Indian reserves in British Columbia have a unique history. When British Columbia joined Confederation, the Terms of Union required the province to convey reserve lands to Canada in trust, for the use and benefit of the Indians. That constitutional obligation, imposed by the Terms of Union, was not fulfilled until many years after the date of union. It was not until 1929 that a "form of tenure and mode of administration" for all reserves in the province was agreed upon by the two governments. Nine years later, the provincial government passed Order in Council 1036, which conveyed most reserves outside the old Railway Belt to Canada. Pursuant to the 1929 agreement, the reserves which had been established inside the Railway Belt, (a strip of land that had been transferred to Canada in 1884), were to be governed by the same terms and conditions found in Order in Council 1036. Other reserves, which had been established pursuant to treaty Number 8, were not formally transferred until 1961. The purpose of this thesis is to examine the history leading up to the transfer of reserve lands in British Columbia, and to critically analyze the title which passed pursuant to Order in Council 1036. The examination of Order in Council 1036 includes an analysis of the proprietary rights transferred, such as water and mineral rights. The transfer instrument is analysed in detail in order to determine what rights and interests were passed to the Dominion and what was reserved to the province. Because the reserves in the old Railway Belt share the same terms and conditions, pursuant to Privy Council Order 208, they will also be included in this study. The establishment and transfer of Treaty Eight reserves will not be dealt with here. However, due to the similarities in the transfer instruments, some of the comments and analysis with respect to the other reserves will be applicable to the Treaty Eight reserves. The Constitution required the province to convey reserve lands to the Dominion. The term "conveyance" is not strictly appropriate to describe a transfer of property rights between levels of Her Majesty's governments. Therefore, certain aspects of Crown title and the transfer of property interests between levels of governemnt are examined herein. It is submitted that, because the Terms of Union required the "conveyance" of Indian reserves, the transaction must be analyzed from a constitutional law perspective. One of the features of Order in Council 1036 is a reservation by the province of a right to resume up to one-twentieth of any reserve lands. That is a term of the conveyance that continues to concern Indian bands in British Columbia. It is submitted that this condition of the transfer is invalid because it is contrary to the requirements of the Terms of Union. The conveyance should not be construed as a grant of real estate, but rather as a transfer of proprietary interests pursuant to legislation. Order in Council 1036, (and the Federal counterpart, Privy Council Order 208), should be viewed as delegated legislation. It is further submitted that this delegated legislation is ultra vires to the extent that it purports to give the provincial government a power of resumption over Indian reserve lands.

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